On Jan. 6, the California Supreme Court
ruled
6-1 that if a woman rescinds consent during the sex act, the man is guilty of
rape if he does not stop immediately.

It also ruled that statements such as "I should go home" constitute an
unambiguous "no" on the woman's part. The definition of rape has evolved again.

What are the
facts
of the case? Seventeen-year-old Laura T. attended an otherwise all-male party at
which she did not drink. After allowing two teenaged boys to undress and fondle
her in a bedroom -- acts she admitted enjoying -- she had sex with each. Laura
did not say the word "no" nor did she resist. Instead, she said, "I have to go
home."

Because John Z. continued for approximately four minutes after she first
expressed what might have been reluctance, he was convicted of rape.

Rape is an abomination no civilized society can tolerate. But precisely
because rape is such a serious crime, it is important to establish explicit and
reasonable standards by which to judge the guilt or innocence of those accused.

If a woman (or man) clearly says "stop" during consensual sex, then the
partner should be morally and legally constrained to do just that -- stop. But
what if the partner proceeds in good faith on the basis of a "yes" given moments
before? Common sense dictates that the rescinded "no" must be explicit and that
the partner should have a reasonable amount of time to grasp the changed
circumstances.

But the court ruled that sex becomes rape the instant the woman
rescinds consent and it provided no guidance on what constitutes the withdrawal
of consent.

The sole dissenting voice, Justice Janice Rogers Brown, found that none of
Laura's statements were "unequivocal." Her requests to go home could have been
interpreted as a need for reassurance or a request for greater speed.

This is a nontrivial point. The law assumes that all adults are responsible
agents in sexual matters. (Laura T.'s age was not introduced as a significant
factor in the court's conclusion.) The law assumes that women and men are able
to make their wants known and, so, have a responsibility to do so.

As for the timing issue ... the court relied heavily upon John Z.'s failure
to desist immediately. But, as Brown observed, the decision "does not tell us
how soon would have been soon enough. Ten seconds? Thirty? A minute? Is
persistence the same thing as force?"

John Z.'s attorney, Carol Foster, argued that her client should have been
given a "reasonable amount of time" in which to withdraw. This is also
nontrivial. If John Z. had a reasonable belief of consent, then he should also
have a reasonable amount of time to realize circumstances had changed.

Brown -- the dissenting judge -- continued, "and even if we conclude
persistence should be criminalized in this situation, should the penalty be the
same as for forcible rape?" In essence, Brown is asking whether consensual sex
that becomes nonconsensual at some point should be treated in the same manner as
a back alley rape committed at the point of a knife. Or should there be another
category of rape, such as negligence, which carries a lesser penalty?

No one wants to return to the '70s when women who took rape cases to trial
were emotionally shredded in cross-examinations. None of us long for the days
when the reports of a raped woman were summarily dismissed by a cynical police
department. But the recent California decision is not a remedy for such problems
surrounding the issue of rape.

Sixties feminism deserves a lot of
credit
for bringing sanity to bear on the crime of rape. They broke down a mythology
that claimed only "bad" girls who walked alone at night in tight clothing were
raped. Research showed exactly the opposite to be true. Every woman was
vulnerable to attack, even in her own home and especially from men she knew.

Sixties feminism attacked a court system that believed rape complainants were
less reliable than other victims. Feminists attacked the "reasonable resistance"
requirement imposed by most states; that is, rape was not deemed to have
occurred unless the woman had manifested strenuous resistance. Meanwhile, other
crimes did not require a victim to resist in order for a crime to have occurred.

The prosecution of rape used to be skewed against women. Now it seems to be
skewed against men. No longer is criminal intent necessary for
criminal guilt.
No longer is an explicit "no" necessary for the withdrawal of consent. And men
may be well advised to keep a stopwatch as well as contraceptives by the
bedside.

The Laura T. decision may well become a Pandora's Box for false accusations
of rape. No longer can the man point to a woman's explicit consent because she
can now argue that -- once penetration occurred -- she changed her mind. She
need not utter the word "no!" She can merely say, "I have to go home."

As the former mainstream feminist professor Erin O'Connor notes in her
blog,
"this ruling neatly dispenses with the idea that rape necessarily involves
force, and replaces it with a definition of consent that is as uncertain and
shifting as the woman who wields it."